Recently, we wrote about the consequences of refusing a blood or breath test as part of a DUII stop-- specifically how they relate to implied consent. Today, we’ll be diving a bit deeper into the topic and will be talking about how to challenge an implied consent suspension in Oregon.
Let’s get started.
If your license is suspended because you refused a breath or blood test, the implied consent suspension comes from the DMV. It is not a criminal suspension and it is completely separate from any suspension that may stem from any DUII (or other criminal) charges you may be facing.
So even if you successfully challenge an implied consent suspension, your license may still be suspended.
What Happens First?
If you refuse a blood or breath test during a DUII stop, the officer will:
Confiscate your license
Issue a temporary driving permit valid for 30 days
issue what is known as a “notice of intent to suspend”
If you wish to challenge your implied consent suspension, you must request a hearing within the time frame indicated by the notice of intent.
Of course, as we mentioned earlier, this is all unrelated to any criminal charges you received for DUII or other possible crimes.
How Soon Must I Request a Hearing?
If you’re facing an implied consent suspension your request must be received by 5PM on the 10th day following your refusal.
What if I Miss the Deadline?
Short answer: Don’t miss the deadline.
Longer answer: If you do miss the deadline, you may request a hearing under ORS 813.440 if:
You were physically injured and/or incapacitated and unable to request your hearing before the deadline. You will need a physician to vouch for you.
A death in your immediate family prevented you from requesting your hearing.
A DMV error
You can also attempt to prove that you had another good reason (known as just cause) for not requesting a hearing in a timely manner.
How to Request a Hearing Under Oregon's Implied Consent Law
As of January, 2017, there are 4 ways to request a hearing and challenge an implied consent suspension in Oregon:
Fax your request to the DMV Hearings Unit at (503) 945-5521
Mail your request to the DMV Hearings Unit: DMV Hearings Case Management Unit, 1905 Lana Ave NE, Salem, OR 97314
Deliver your request personally to the DMV hearings unit in Salem.
Note: If you choose the final option, you must personally deliver the request yourself. Delivery by proxy is not allowed.
Your request must include information like your name, address, date of arrest, driver license number, etc., as well as a statement of the issues you plan to raise at the hearing. You can view the full list of required information on the ODOT website.
You can call the DMV at (503) 945-5545 to confirm that your request was received.
What to Expect At Your Hearing
Unless you explicitly request an in-person hearing, it will take place over the telephone.
Your hearing will be presided over by an administrative law judge. An administrative law judge is a judge who both oversees proceedings of administrative law and adjudicates the claims. In other words, he or she is both judge and jury.
At the hearing, you’ll be able to present evidence on your behalf-- including witnesses. The police officer involved in the investigation will present evidence against you.
Is It Possible to Successfully Challenge an Implied Consent Suspension?
Yes, but you have to prove one of the following:
The police didn’t have reasonable grounds to request you submit to a blood or breath test
You weren’t actually under arrest for DUII when you were asked to give a blood or breath sample
You never received proper notice of intent to suspend
These are very narrow guidelines and representation from an experienced DUII lawyer can help.
As a DUII lawyer in Portland, I can help my clients understand their rights and help them determine if they have a reasonable chance of having their implied consent suspension overturned. I can help determine if:
The original stop was lawful
Were tests administered correctly
Were you read your implied consent rights?
In most cases where a person wins their implied consent hearing it is on a technicality. And without a lawyer’s help, the vast majority of people will miss any opportunity they had.
What Happens After My Hearing?
If the judge rules in your favor, you’re all set-- your license won’t be suspended.
If the judge rules that your implied consent suspension is valid, then your suspension will begin after your 30-day permit expires. There are opportunities to appeal the ruling but don’t expect a miracle.
Do I Have to Pay For My DMV/Implied Consent Hearing?
No! It is your right to challenge an implied consent suspension in Oregon at no cost to you other than your legal fees, of course. Even though these hearings are difficult to win, it may be worth a shot if you risk losing your job should you lose your driver’s license.
Do You Need Help With DUII Case Or An Implied Consent Suspension Hearing?
Call me today at (503) 227-3800. Your consultation is free and is always confidential.